Case No: Criminal Appeal No. 53 of 2003
Judge: Muhammad Imman Ali,
Court: Appellate Division ,,
Advocate: Md. Nawab Ali,Mr. Md. Showardi,,
Citation: 3 LNJ (AD) (2014) 89
Case Year: 2014
Appellant: The State
Respondent: Dr. Fazlur Rahman
Subject: Criminal Trail,
Delivery Date: 2014-01-15
|Nazmun Ara Sultana, J,
Syed Mahmud Hossain, J,
Muhammad Imman Ali, J,
Mohammad Anwarul Haque, J,
. . . Appellant
Dr. Fazlur Rahman
. . . Respondent
Code of Criminal Procedure (V of 1898)
Sections 435 & 439
An accused person who avoids the process of any court is a fugitive from justice and cannot seek justice without surrendering before a court of law. The respondent was a fugitive from justice and still remains so in spite of the fact that this Division issued directions to secure his arrest, he remains still at large. Until his surrender, no court of law can give him any protection or entertain any application by him. . . .(10)
Anti-Corruption Commission and others Vs. Mahmud Hossain and others, 61 DLR (2009) 17 ref.
For the Appellant: Mr. Md. Sohrawardi, Deputy Attorney General, instructed by Mvi. Md. Wahidullah, Advocate-on-Record
For the Respondent: Mr. Nawab Ali, Advocate-on-Record.
Criminal Appeal No. 53 of 2003
This criminal appeal by leave arises out of the order dated 24.03.2003 passed by a Division Bench of the High Court Division in Criminal Revision No. 227 of 2003 granting ad interim bail to the petitioner, Dr. Fazlur Rahman – respondent herein.
The facts in brief are as follows:
Dr. Fazlur Rahman, respondent herein, was accused in Metropolitan Special Case No. 2 of 2002 arising out of Ramna Police Station Case No. 70 dated 27/03/2001 under sections 409/420 of the Penal Code read with section 5 (2) of the Prevention of Corruption Act 1947 pending in the court of Metropolitan Sessions Judge and Senior Special Judge, Dhaka. He is alleged to have issued four cheques for Tk. 80,69,500/-in favour of the informant, Abu Bashar, which were dishonoured. The informant lodged a First Information Report (F.I.R.) at Ramna Police Station on 27/03/2001. After investigation, the police submitted charge sheet against the accused, who upon arrest prayed for bail in Criminal Miscellaneous Case No. 1569 of 2001 before the Metropolitan Sessions Judge, Dhaka who granted bail to him on 24.05.2001 till submission of charge sheet. After submission of charge sheet, the case records were sent to the court of Senior Metropolitan Sessions Judge for trial, where Special Case No. 2 of 2002 was registered and the Special Judge granted bail to the respondent on 6.2.2002 and fixed the case for hearing of cognisance. In the meantime, sanction was granted for trial of the respondent. On the date fixed, the respondent did not appear before the Special Tribunal on the ground of his illness and remained absent. Thereafter, without surrendering to the trial court, he filed an application under section 241A of the Code of Criminal Procedure for discharging him from the case on the ground that the criminal case which was started against him was not maintainable. The application was rejected and the learned Special Judge cancelled the bail of the respondent and issued a warrant for his arrest. The respondent, thereafter, moved the High Court Division under sections 435 and 439 of the Code of Criminal Procedure, without surrendering before the trial court. The High Court Division issued Rule and on the same date granted ad interim bail and stayed all further proceedings of the Metropolitan Special Case No. 2 of 2002.
The State, being aggrieved, filed Criminal Petition for Leave to Appeal No. 76 of 2003 before this Division. Leave was granted to consider whether the High Court Division erred in law in granting bail to the petitioner and staying further proceedings of the special case pending for trial, when the respondent did not surrender before the trial court in compliance with its order dated 8.3.2003 and filed the revisional application as a fugitive before the High Court Division, which is incompetent according to settled principles of law. At the same time, this Division directed the Metropolitan Sessions Judge, Dhaka to immediately secure arrest of the respondent Dr. Fazlur Rahman in connection with the Metropolitan Special Case No. 2 of 2002 arising out of Ramna P.S. Case No. 70 dated 27.3.2001.
Mr. Md. Sohrawardi, learned Deputy Attorney General submitted that it is a settled principle of law that a fugitive from justice cannot get the protection of law. He pointed out that the respondent did not surrender to the trial court after his bail was cancelled and warrant of arrest issued. He moved the High Court Division without surrendering there, and, therefore, the revisional petition ought not to have been entertained nor the Rule issued. He submitted that even the swearing of the affidavit was illegal. He pointed out that the revisional petition filed before the High Court Division shows that the respondent did not appear before the Commissioner of Affidavits and the cause title of the petition does not state that the petitioner was in custody, or was on bail, or appeared in person before the High Court Division. The learned D.A.G. submitted that the issuance of the Rule was illegal as was the grant of bail, which was cancelled by this Division and warrant of arrest was directed to be issued.
The learned advocate on record appearing on behalf of the respondent made submissions supporting the order of the High Court Division.
We have considered the submissions of the learned advocates and perused the impugned order as well as other materials placed before us. It is apparent from the revisional application filed by the respondent before the High Court Division that his bail was cancelled by the trial court and direction was issued for his warrant of arrest. The cause title of the revisional application does not indicate whether the respondent was on bail or in custody or present before the High Court Division. The affidavit of the revisional application was sworn by a Tadbirkar. There is nothing on record to suggest that the petitioner of the revisional application was present before the High Court Division when his application was considered or that having accepted his personal appearance bail was granted.
It is by now a well-established principle of law that an accused person who avoids the process of any court is a fugitive from justice and cannot seek justice without surrendering before a court of law.
In this regard we may refer to the decision in Anti-corruption Commission and others vs. Mahmud Hossain and others, 61 DLR (2009) 17, where Mohammad Fazlul Karim, J. (as his lordship then was) observed as follows:
“Cardinal principle of the criminal jur-isprudence is that the person concerned should submit to the process of justice before he can claim the right of audience provided in law as well as the judicial convention, which is very much effective in the Court of law. Enunciating the age old maxim that a man who seeks justice from the Court of law must come before the Court to agitate his grievance and must surrender first to the process of justice, otherwise he remains to be fugitive from justice and could not seek aid or assistant of the process of justice in order to claim right of audience against the process of the court issued against him.”
“In the instant case, the petitioner having not surrendered to the process of the Court could not file any application or put his grievance before a Court of law far less before the Appellate Division of the Supreme Court of Bangladesh. In the absence of any surrender before the process of law, the Court of law is incompetent to issue any order or stay any process at its behest and if done so that would be illegal and without jurisdiction.”
In the facts of the instant case, it appears that the respondent was neither in custody nor appeared in person when his revisional application was moved. Clearly the High Court Division ought not to have considered his petition as he was undoubtedly a fugitive from justice. Hence, the question of issuing any Rule did not arise.
In the facts and circumstances, we are of the view that the respondent was a fugitive from justice and still remains so in spite of the fact that this Division issued directions to secure his arrest, he remains still at large. Until his surrender, no court of law can give him any protection or entertain any application by him.
This appeal is, accordingly, allowed and the impugned Order of the High Court Division in Criminal Revision No. 227 of 2003 including the issuance of Rule, granting of ad interim bail and staying further proceedings of Metropolitan Special Case No. 2 of 2002 which arose out of Ramna Police Station Case No. 70 dated 27.03.2001 now pending in the Court of Metropolitan Sessions Judge and Special Judge, Dhaka is hereby, set aside.
Let a copy of this judgement and order be communicated at once to the Court concerned. Upon receipt of a copy of this judgement and order, the Metropolitan Sessions Judge and Senior Special Judge, Dhaka is directed to proceed with the trial of the respondent Dr. Fazlur Rahman in accordance with law.